KYOTO PROTOCOL BOON OR A BANE

INTRODUCTION

Industrialisation has long started before the 18th century every country has developed on its
own platform despite being cursed by the world war I, II But no wonder the curse of world war
has forced some countries to bring developments through industrialisation and trade. even
though several countries didn’t participate in the world war still have been suffering without
proper development. because of rapid growth in trade there has been issues in relation to the
environment (irrespective of nature, wildlife and natural resources). there has been conflicts
between trade and environment even though countries did take steps to curb the destruction of
the environment. Since the 1970’s there has been many agreements and decisions made for the
conflict between trade and environment but it all started in the year 1971 when the GATT
director started taking steps in the Stockholm round1 .the GATT wanted to form a group on
Environmental Measures and International Trade but it was to start only when the member
countries needed it but it wasn’t happening until 1991 till that many developments happened
with regard to the trade and environment during 1982 there were debate going on between them
regarding the anti-dumping measures. Then in 1992 after the Uruguay round WTO was formed
and As a result, the preamble to the Marrakesh Agreement Establishing the World Trade
Organization, refers to the importance of working towards sustainable development. It states
that WTO members recognize:

“that their relations in the field of trade and economic endeavour should be conducted with a
view to raising standards of living, while allowing for the optimal use of the world’s resources
in accordance with the objective of sustainable development, seeking both to protect and
preserve the environment and to enhance the means for doing so in a manner consistent with
their respective needs and concerns at different levels of economic development.”2and they
formed the Committee on Trade and Environment this committee was started in 1995 for
solving the trade and environmental disputes which arises but this is more of a statue because
it wasn’t able to apply its recommendations on the disputes as its powers were less 3

1
The Stockholm Declaration of the United Nations Conference on the Human Environment, 11 I.L.M. 1416
(1972).
2
https://www.wto.org/english/tratop_e/envir_e/hist1_e.htm
3
In 1972, the GATT .created the Working Group on Environmental Measures and International Trade to
address growing concerns about the impact of environmental measures on trade liberalization; the Working
Group did not meet until 1991. Further, between 1991 and 1995 the Working Group failed to make significant
progress in addressing the issue. See, Gregory C. Shaffer, "The World Trade Organization under Challenge:
The researchers main aim is to study and analyse whether the Kyoto protocol was a failure and
was U.S a main reason for improper function of the Kyoto protocol. The researcher has also
analysed whether U.S will be a part of the Paris convention on 2020 or will it turn its back
against the wall.

The United Nations Framework Convention on Climate Change (UNFCCC) is a framework

reduce emissions of greenhouse gases (GHGs), such as carbon dioxide which have drastically
increased because of the human activities. Since there is a lot of green house gas emissions in
the atmosphere there has been a significant change in the climate. This might lead to a
catastrophic state of the world or even extinction. The ultimate objective of the UNFCCC is
"stabilization of the greenhouse gas concentration in the atmosphere at a level that would
prevent dangerous anthropogenic interference with the climate system"4 It says countries
should cooperate and support for the ultimate goal of achieving sustainable development to
take this farther more came the KYOTO PROTOCOL which was taking UNFCCC goals on its
own and started to fix certain targets on the emission reduction to achieve for the developed
countries .the member countries had to comply to it

It was adopted on 1997 and came into force on 2005 first commitment period 2008 to 2012 and
2013 to 2020. the idea was to reduce the green house gas emission by 5% against whatever
level was in 1990 and by the end of second commitment it has to reduce by 18% cfc, sulphur
di oxide and carbon di oxide

Idea of CARBON TRADING/ CAP AND TRADE came from here. it is nothing but aim to
reduce carbon emissions by incentives

ILLUSTRATION: suppose industry A is producing 20% emission of greenhouse gas and

industry B is producing 30% emission of greenhouse gas but the government decided or
permitted percentage or capped percentage is only 25%,here the industry A has produced only
20% which is well less than the permissible limit of 25% do the industry A can sell the
remaining 5% permit to industry B which is producing beyond the government allowance .here
industry A is benefiting out of it this kind of method is called cap and trade.

Democracy and the Law and Politics of the WTO's Treatment of Trade and Environment Matters," Harvard
Environmental Law Review, Vol. 25,2001, p. 17-25.
4
See, the UNFCCC, art. 2 (THIS IS FROM ARTCILE
http://shodhganga.inflibnet.ac.in/bitstream/10603/14533/14/14_chapter%205.pdf
There should be a eligibility for carbon trading and they are

 There should be a national registry to keep record of all the carbon being traded and all
trading must be recorded
 Assigned amount of carbon di oxide must be recorded
 The party must ratify to the kyoto protocol and must provide an annual report on
emission standards

It gave 3 implementation mechanisms and they are:

JOINT IMPLEMENTATION

A relation between a developed nation ANNEX A and a developed nation ANNEX B e.g.:
Ukraine and Russia working on join implementation program and both work on carbon in
particular and green house in general

CLEAN DEVELEOPMENT MECHANISM

In this mechanism one developed nation ANNEX A and one developing nation ANNEX B will
be involved .the ANNEX A industry will have higher gas emissions than of the ANNEX B
industry so if the ANNEX B industry sells its credits to the ANNEX A industry it will get
incentive but not in terms of money ,in terms of development the ANNEX A industry will
provide incentive by helping it build a new plant or new technology or any development related
aspect.

INTERNATIONAL EMISSION TRADING

It is the same as the clean development mechanism but incentive is provided in terms on money

There were many reasons which lead to the failure of the Kyoto protocol one major accusation
is the non-ratification by U.S, and some say it’s the framework in which the protocol is
designed which has many flaws within itself but before these let’s see why U.S didn’t go into
ratification

The senators in the U.S congress passed a resolution that U.S shouldn’t sign any agreements
that would reduce the U.S economy. Just to reduce the greenhouse gas emissions which were
harmful they weren’t ready to sacrifice the economy of the country even though the president
at that time Bill Clinton wanted to sign the agreement he couldn’t just because the resolution
was passed by their senators at a majority of 95-0 .there were democrats and republicans who
had interests over industries so they weren’t ready to agree for limiting pollution emission
.other countries thought just by convincing the president would be enough for them to make
U.S ratify to the agreement but that was not the case .Barack Obama who was the last president
who gave so much importance for the climatic issues and also had good number of strength
who support in both houses still was unsuccessful it is because of the politics done by the
country within itself which payed way for non-ratification 5then came George Bush’s the 43rd
president he was also of the opinion that U.S wont ratify because most of the developing
countries were being left out and if America agrees to it then they have to suffer economic
crisis at large and it needs more than 4 years to adapt to it6apart from the U.S backing out some
of the other reasons were

DIFFERENTIATED TREATMENT:

Each country were treated differently developed countries which are in the ANNEX A should
have to bind by the laws but the developing countries which were in the ANNEX B weren’t
forced to bind by the law .this seemed to be unfair for many of the developed countries which
prevented them from ratifying the agreement except the European Union which mostly had
followed according to the agreement and one country which was able to achieve near to the
agreement was Germany which was very serious about it .

It also makes the very part of POLLUTERS PAY PRINCIPLE go useless as it is for the ones
who polluter the most. The one who pollutes is responsible for the pollution and he pays the
entire amount for it. this was bought so that it reduces pollution but here by following the Kyoto
protocol it might Destroy the very purpose of why polluters pay principle was brought.7 might
take advantage by producing more and more pollution since there is less amount As part of the
Kyoto protocol initiative on step which the Canada government took was the ONE TONNE
CHALLENGE the positive side of this challenge was that on one had all environmentalists
wanted only highly polluted countries to reduce their GHC emissions this challenge went on
to have a equal contribution from all nations and reduce to a particular percentage this was
done in Canada in domestic level in various sectors and GHC emissions were set up in each

5
https://www.forskningsradet.no/en/Newsarticle/Why_the_Kyoto_agreement_failed/1253963392536
6
See among others, Benedick, R.“How workable is the Kyoto protocol?, how to salvage the Kyoto protocol”,
weathervane, March 1998.
7
The principle is considered to provide an economically efficient solution because it requires polluters to
internalize costs of pollution. When the principle is in effect, the cost of goods and services reflect the expense
of pollution control: C. Stevens, “Interpreting the Polluter Pays Principle in the Trade and Environment
Content” (1994), 27 Cornell Int. L.J. 577.
sector from automobile to gas and industrial sectors though it was highly applauded there were
criticism that sector that were largest in producing were least penalised as the percentage set
up was high for them based on the growth rate .if we take the similar to the current situation of
Kyoto protocol the ANNEX B countries that is the developing countries such as India and
china which produces less than the amount of the ANNEX A countries they should be charged
the same cause there is no use of it these were the reasons why it lead to the failure of Kyoto
protocol there has been a great amount of increase in the green house gas emissions and glaciers
have been falling off soon nothing has changed that much but this could be seen as good step
taken with care for the environment the 1970’s .the world is in a alarming state which has to
be addressed properly and taking into account of all countries and leaving the politics behind
there should be new and practical methods which can help to achieve sustainable development.

THE 2020 AGREEMENT, WILL U.S STAND MAKE A IMPACT ON THE FATE OF 2020:

The Paris convention started in the year 2015 and it will not be a reputation of the Kyoto
protocol which failed to make a impact on the environment issues because of the flaws which
it had in itself and the lack of consistency with the other principles8 .over the years the members
and great scholars have come to a conclusion that the plans which they make should not only
be a temporary or immediate relief but a permanent one which can cooperate and apply to the
state of the respective countries which the Kyoto protocol failed to do.it has more transparency
and five yearly reviews which can solve the issues by consulting and help in achieving the
required targets or setting the targets high there has been a optimistic vibe going on for the
Paris convention as it is considered to be a game changer .the NGO are allowed to criticise the
actions ,the targets set by them and the achievement they have done it can also be a
transnational one .there will be more transparency. Much of the big businessmen and others
have urged to prepare a worthy and useful agreement which can benefit the environment and
at the Same time which doesn’t create problems with the economy that much9..in this
agreement the counties are allowed to decide their own pledges according to their sufficiency.
This was one of the main reasons for many countries to drop from the Kyoto protocol10

8
Nachmany et al., The 2015 global climate legislation study.
9
Madeleine Cuff, ‘Global CEOs issue rallying call for “ambitious” COP-21 deal’, business Green, 23 Nov.
2015, http://www.businessgreen.com/bg/news/2435987/global-ceos-issue-rallying-call-for-ambitious-cop21-
deal.
10
Robyn Eckersley, ‘Ambushed: the Kyoto Protocol, the Bush administration's climate policy and the erosion of
legitimacy’, International Politics 44: 2–3, 2007, pp. 306–24; Robert Falkner, ‘American hegemony and the
global environment’, International Studies Review 7: 4, 2005, pp. 585–99.
When we look at the history of U.S in the protocol Bill Clinton who was the president of U.S
at that time came out of it because most of the republicans and democrats at the house had
some sufficient interest in the industrial sector which made them to oppose on the climatic bill
then came the new president George Bush who wanted to ratify it but because of the pressure
from the house with a clear 95-0 majority it was unsuccessful .but another reason stated by
them is that there weren’t enough time to adapt to it so they have rejected the idea of joining.
But now Donald Trump has taken the hot seat, as soon as he got elected as the president of
America the first thing he did was the withdrawal from the agreement. The Kyoto agreement
which flawed because of the binding features does not give any binding enforcements or any
penalties for the Paris convention, and since it has the flexibility of setting the target which
suits the economy it is more easy for U.S to choose it .there has been theories that trump’s
decision to walk out of the Paris convention was because of the fossil fuel company interests
he had or because of trump is trying to eliminate the policies which were brought into act in
the Obama period.11.the state taken by the U.S wont affect the Paris convention apart from
causing problems for achieving the targets set by the protocol ,but if the same state is taken by
other countries or the other countries try to take advantage of the agreement as it is flexible it
might lead to a chaos .

This has again become a political play by the U.S as there has been continuous speculations
about the leaders and the member of the house’s personal interests so if there are increase in
the EGC in the atmosphere despite the continuous evaluation by the committee on five yearly
bases then it might be because of the countries which are left out who don’t want to ratify the
agreement. Canada was also one of the countries who came out of the agreement’s might pose
a potential threat to the environment because of its political play, but it is time for the countries
to take serious steps to protect the environment. Developing countries like have achieved the
target of setting the emissions low but still it continues to be very polluted. India has got a clear
advantage as they don’t have a binding against them and allows hem pollute to certain levels
which is not the case for the developed countries, which is also one of the reasons stated by the
current president of America for his country’s withdrawal from the agreement in 201512
.however many experts and other countries want them to join the agreement.

11
https://www.nytimes.com/2017/05/09/climate/paris-climate-agreement-kyoto-protocol.html
12
https://ccs.in/sites/default/files/files/India%2C%20CDM%20and%20Kyoto_%20oct03.pdf
CONCLUSION AND RECOMMENDATION:

Analysing the entire process of the protocol and the drama around it can be said that the
protocol was itself so vague and not serving the purpose as it even contradicted with the other
principles like the polluters pay principle, lack of over view ,lack of reviewing ,incorrect
treatments and the very nature of providing binding and non-binding features has to a failure
of the protocol but not only does these act as a wall for the sustainable development ,the state
which U,S has taken has also made a major part .some of the developing countries or the other
developed countries may think of the opportunity to exploit for the development by not
ratifying to the agreement. The Paris convention which might be a game changer has a lots of
positive views about it like the reviewing feature and non-binding nature might attract the U.S
in another years to sign before 2020 even though they had withdrew from it .the main reason
which U.S gave for withdrawing is the binding feature and the differential treatment since the
Paris convention has bought these changes by trying to clear itself from the faults this should
be a way to come again to cooperate for sustainable development. Overall the Kyoto protocol
is failure because of the above stated reasons and some recommendations are as follows:

1. the reviewing producer should be done every year in order to prevent any wrong acts

2. the reviewing system must be a transparent one and comparable one, so that each country
can compare within themselves or within their previous record. incentives should be granted
for the countries with good performance nit in the terms of money but in terms of FDI which
could help them to sustain better

3. there should be cooling of period granted to the countries which are signatories to it as it is
difficult for the members to adapt to the new regime suddenly. Not only does it create loss to
its economy but effects on a long-term basis because of the hasty decisions made, in order to
support this the WTO should try to bring new tax reduction scheme in the respective countries
or even provide more importance for national treatment as in the case of U.S vs India13

4. in order to avoid the drama created because of the political leader’s interest which U.S did
when it didn’t ratify to join the Kyoto protocol there should be upper body appointed like
OMBUDSMAN

an ombudsman is a official appointed to keep a check on the government activity and to

overlook the investigation of complaints of improper government activity. If the ombudsman

13
http://www.mondaq.com/x/533696/Renewables/WTO+Case+Summary+India+Solar+Cells
finds a complaint to be substantiated, the problem may get rectified, or an ombudsman report
is published making recommendations for change 14

this weapon is mainly used against the government and government officials but here it can be
used for monitoring the reasons what each country is doing and what are the reasons for their
withdrawal, signing .it can also look after the review procedure in a transparent manner and
keep open records.

14
https://en.wikipedia.org/wiki/Ombudsman#In_politics